Analysis

Xenophobic COVID-19 Lingo Poses Legal Risk For Employers

By Vin Gurrieri
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Law360 (March 31, 2020, 8:06 PM EDT) -- Although he has recently dialed back his rhetoric, President Donald Trump hasn't been shy about branding the novel coronavirus that has much of the world on lockdown as the "Chinese virus." But employment law experts say that term and other arguably xenophobic expressions should be quarantined from the workplace.

When Trump started using the phrase in mid-March to describe the novel coronavirus and the disease it causes, which is named COVID-19, his critics said he was engaging in racist and xenophobic language that demeaned Asian Americans. The president argued the term was a factual representation of where the virus originated, but he has since softened his language.

But because this and other terms to describe COVID-19 that could be perceived as xenophobic or derogatory are in the public lexicon, employment law observers say that businesses should tread carefully if employees hurl that sort of language at work.

"Since our political discourse has sort of devolved over the last several years, I think you've seen employers not get involved in whether things are illegal or inappropriate, we've just maintained a higher bar, which is we want everybody to be respectful and courteous to each other," said Rachel Cowen, a partner at McDermott Will & Emery LLP in Chicago.

"If you were to see a lot of back-and-forth about the use of 'Chinese flu' or other terminology that people thought were offensive, you would just see an admonition coming from corporate to remind people of the need to be respectful, and very much the way after Trump was elected or after some of the things that have happened over the last year, we're just constantly reminding people that feelings matter and that it's important to not hurt people's feelings," she added. "I don't think you're going to see a ton of employers start really weighing in about whether it's racist or xenophobic, they're just going to tell people, 'Please don't use language that your coworkers find offensive.'"

Controversy Swells

For a period in early March, Trump stoked controversy by making it a point during his daily public appearances and on social media to use "Chinese virus" as his default mode for describing the pathogen that originated in the central China city of Wuhan late last year and has since infected hundreds of thousands around the globe.

But the president has scaled back his choice of words amid media reports that Asian Americans have been subjected to national origin- and race-based attacks as COVID-19 rapidly spread across the U.S. He tweeted on March 23: "It is very important that we totally protect our Asian American community in the United States, and all around the world. They are amazing people, and the spreading of the Virus .... is NOT their fault in any way, shape, or form. They are working closely with us to get rid of it. WE WILL PREVAIL TOGETHER!"

Those reports of mistreatment also caught the attention of the U.S. Equal Employment Opportunity Commission, the federal agency tasked with enforcing laws intended to prevent discrimination and harassment in the workplace.

EEOC chair Janet Dhillon issued a statement on Thursday noting that mistreatment and harassment against people of Asian descent can be unlawful if it happens at work.

"Amidst the challenges we are all facing during these uncertain times, the anti-discrimination laws the EEOC enforces are as vital as ever," Dhillon said. "The EEOC urges employers and employees to be mindful of instances of harassment, intimidation, or discrimination in the workplace and to take action to prevent or correct this behavior. Our collective efforts to create respectful workplaces for all our nation's workers, even during these trying times, will enable us to emerge from this crisis stronger and more united."

Sharp Rebukes

Outside of government, the Trump administration's words drew swift rebukes from numerous civil rights advocates, including Rebecca Dixon, executive director of the National Employment Law Project, a workers' advocacy organization.

On March 20, Dixon condemned use of the term "Chinese virus" by the Trump administration or media outlets, saying it sets a "dangerous tone" and "directly enables xenophobia, dehumanization, and violence."

"Workers have a right to safe and healthy workplaces where racism must not be tolerated," Dixon said in a statement, urging workers and businesses "to reject the casual racism broadcast from the White House that feeds into and encourages a larger system of violence."

"NELP acknowledges the long history of racism that falsely ties disease to people of color, resulting in immigration exclusions and detention, ghettoization, housing raids, inequitable health and economic systems, and exclusion from recovery efforts," she said.

Her statement falls in line with the position taken in recent years by the World Health Organization, which has opposed the use of geographic locations to name new pathogens and diseases to "minimize unnecessary negative effects on nations, economies and people," according to a best practice guidance it issued in 2015. That guidance also cautioned against media and others with a public presence using things such as people's names or animal species in naming new infections.

The WHO guidance said use of such terms to name diseases has resulted in backlash against people belonging to certain religions or ethnicities and had numerous negative economic impacts on geographic areas.

Workplace Bias Problem

When controversial terms are used to describe viruses in a way that can be perceived as scapegoating a particular country or group of people, the danger in the eyes of employment law practitioners is of a situation in which a remark can form the basis of a workplace bias or harassment claim, in line with the EEOC's recent warning regarding Asian Americans.

Anthony DiBenedetto of Fenwick & West LLP said that employers shouldn't want workers expressing negative sentiment toward members of any protected class of people, whether its comments about their race, religion or anything else.

"I think when people use that term, there's definitely some anti-Chinese sentiment behind it," DiBenedetto said. "If you have employees using that term, particularly in a negative manner, with respect to Chinese people, you have potential for workplace discrimination for sure."

If something like that happens, DiBenedetto said that companies can lean on a strong anti-harassment and anti-discrimination policy that it hopefully already has in place and that managers should be proactive in identifying workplace anti-discrimination issues.

The process of addressing it would include letting the offending employee know that their behavior isn't acceptable and potentially involving HR in helping to coach employees on proper terminology and comments that they should avoid, he said.

"In this case, someone using a potentially negative term, you would want to put that to an end because if it becomes part of the company's culture, you're going to have a portion of the company's population feel like they're being discriminated against," he said.

Danger of Telework

One area where problematic remarks could rear their ugly head is in virtual communications — something that is going on a lot during the COVID-19 pandemic as thousands of people now have to work from home, a less formal location than a physical worksite.

DiBenedetto said workers often act in more inappropriate ways when they're communicating through text or instant messaging, saying things they wouldn't say face to face.

"I can definitely see some issues continuing to arise even though a lot of the workforce isn't interacting face to face," he said. "It is worth making sure that your policies are clear to employees that [you] not only prohibit discrimination in the workplace, but you prohibit discrimination whenever employees are interacting with each other."

And although he hasn't seen it happen in his own practice, DiBenedetto said issues may arise as workers share jokes and memes with colleagues to provide levity about the pandemic that ventures into potentially discriminatory territory.

"You can't have your employees sharing discriminatory electronic content with each other," DiBenedetto said. "Perhaps one person thinks it's funny and they send it to a group of coworkers and it contains a potentially discriminatory message and all of a sudden you have a workplace discrimination problem."

When Employees Return

Problems with potentially xenophobic language tied to COVID-19 are largely on the back burner now, Cowen said, as bread-and-butter issues like pay, job security and workplace safety are at the forefront of workers' and employers' minds.

But at some point, when the public health danger subsidies and employees head back to their worksites feeling more secure, discussions that involve terms like "Chinese flu" or possibly xenophobic Facebook memes and jokes may start.

"You're going to see more of that as people return to work and less of it from an employer's standpoint right now where everyone is obsessed with" workplace safety issues, Cowen said.

Besides potentially xenophobic or racist remarks, the sentiment behind them might also face employers if workers request to not work near colleagues of Asian ethnicity or perhaps of Latin American or Indian descent if the virus surges in those parts of the world as American workers go back on the job.

"I definitely think you could have that request and the answer would be, 'no.'" Cowen said. "And [it] would just be patently unlawful to say, 'I don't want to sit next to my colleague' who may be of Indian descent or Latin American descent where the virus might be trailing behind us."

--Editing by Brian Baresch and Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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